Canadian Lawyer

If so, it would not come as a great shock. After all, it's a dirty little secret within the legal profession that Canada's law societies overwhelming prosecute solo or small firm lawyers compared to those who toil for big firms. Alice Woolley, a law professor at the University of Calgary and leading expert on lawyer discipline, says it's "empirically demonstrative" this is the case. "And it means that certain areas of practice are more effectively regulated than others," she maintains. In a recent paper, Woolley examined the track records of five provincial law societies and concluded 87 per cent of the lawyers disciplined in 2009 were either sole or small firm practitioners while none who belonged to a very large or national firm were disciplined. "So do we have the most proactive and sophisticated and innovative regulation of lawyers that we could in Canada?" she muses. "I think the answer is no." The often questionable nature of how regulators discipline lawyers is highlighted by the Joe Groia affair. One of Canada's top securities lawyers, Groia runs a boutique law firm, Groia & Co., in Toronto. In 2007, he managed to get John Felderhof, a former executive with Bre-X Minerals Ltd., acquitted of insider trading in a hard fought case against the Ontario Securities Commission. But during the bruising legal odyssey, Groia was criticized by two appellate judges for his courtroom behaviour. In 2009, the Law Society of Upper Canada charged him with professional misconduct for "incivility" — a crime prone to subjective interpretations. The cost by LSUC to prosecute Groia, which included weeks of hearings in 2011 and 2012, was at least $250,000 (and it cost Groia another $1 million to defend himself). Yet the entire case was roundly condemned by many lawyers as a waste of money with damaging repercussions to litigators. Prominent barristers like Edward Greenspan and David Roebuck criticized the law society, with even longtime bencher Clayton Ruby calling concerns about incivility "the obsession of small minds." Groia himself feels if he was a partner with a big Bay Street law firm, the law society would not have pursued him. Last summer, the law soci28 Jan uary 2013 www.CANADIAN ety found Groia guilty of professional misconduct and at press time was still considering whether to suspend him for up to four months and make him pay costs of $250,000. For critics, the Groia case highlights the a report concluding Belhassen was incompetent and posed a danger to his clients and recommended his license be yanked. Instead, the Barreau simply ordered Belhassen to take some refresher courses. "I WOULd SAY ThAT ThE LAW SOCIETY hAS NOT dEALT AS EFFECTIVELY WITh MR. MERChANT AS ThE COURTS hAVE dONE IN TERMS OF AddRESSING SpECIFICS OF hIS CONdUCT ANd IN TERMS OF IMpOSING AppROpRIATE CONSEQUENCES ON hIS BEhAVIOUR." ALICE WOOLLEY peculiarities of whom law societies choose to make examples of. "Law societies are extremely slapdash about all aspects of their disciplinary proceedings," remarks Philip Slayton, a former Bay Street lawyer, law school dean, author of Lawyers Gone Bad and Canadian Lawyer columnist. "They are not tightly run, carefully run ships. It's not a question what penalty they impose. It's a question of how they decide about who they go after in the first place. Why did the LSUC decide to go after Groia and why not go after someone else? The history is very, very poor and gives you no faith in law societies properly, appropriately, and even-handedly disciplining members." L aw societies can put up blinders to ruinous effect and few cases highlight this more than that of Eric Belhassen. A Montreal lawyer who practised commercial litigation, Belhassen was called to the bar in 1978 and complaints against him began to arise almost immediately. By the mid'80s, four complaints had been filed with the Barreau du Quebec. In 1990, its investigations committee issued L a w ye r m a g . c o m In 1993, one of Belhassen's clients, Christina McCullock, complained to the Barreau about Belhassen's poor legal work, which included appearing for both the plaintiff and defendant in court. But the Barreau dragged its heels before doing anything about her complaint, only disbarring Belhassen five years later (and only for five years, although Belhassen no longer practises law). So McCullock sued the Barreau for failing to protect the public, saying it knew for years he was incompetent before acting. Unable to find or afford a lawyer, she pursued the case on her own. The Barreau, joined by the Federation of Law Societies, fought her all the way to the Supreme Court. In 2002, Quebec's Superior Court ordered the Barreau to pay McCullock $25,000, noting it had not dealt with her concerns in good faith and its failure to act promptly had given Belhassen full leave to continue to practise for nearly 10 years after the decision to hold the first inquiry into his professional duties had been made. Then there is Anthony Merchant, a high-profile and controversial Regina-

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